2011/06/29 Council Agenda Packet

8 Jacksonville,FL 32204 16.8 Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving Its rights. 16.9 Severability. If any provision of this Agreement Is held by court or arbitrator of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. Sections 5,8,10,11, 13,and 16 shall survive the expiration or earlier termination of this Agreement for any reason. 16.10 Attorneys'Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any instrument or agreement required under this Agreement,the prevailing party shall be entitled to costs,reasonable attorneys'fees actually incurred,and necessary disbursements incurred in connection with such action,as determined by the court. 16.11 No Third Party Beneficiaries. Each party intends that this Agreement shall not benefit,or create any right or cause of action in or on behalf of,any person or entity other than the Customer and Metavante. 16.12 Force Maleure. Notwithstanding any provision contained in this Agreement,neither party shall be liable to the other to the extent fulfillment or performance If any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders;wars;acts of enemies;strikes;lack of available resources from persons other than parties to this Agreement;labor disputes; electrical equipment or availability failure;fires;floods;acts of God;federal,state or municipal action;statute;ordinance or regulation;or, without limiting the foregoing,any other causes not within its control,and which by the exercise of reasonable diligence it is unable to prevent,whether of the class of causes hereinbefore enumerated or not. This clause shall not apply to indemnification obligations or to the payment of any sums due under this Agreement by either party to the other. 16.13 Negotiated Agreement. Metavante and Customer each acknowledge that the limitations and exclusions contained In this Agreement have been the subject of active and complete negotiation between the parties and represent the parties'voluntary agreement based upon the level of risk to Customer and Metavante associated with their respective obligations under this Agreement and the payments to be made to Metavante and the charges to be Incurred by Metavante pursuant to this Agreement. The parties agree that the terms and conditions of this Agreement shall not be construed In favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this document. 16.15 Counterparts. This Agreement may be executed in one or more counterparts,each of which shall for ail purposes be deemed to be an original and all of which shall constitute the same instrument. 17. DEFINITIONS A. 'Affiliate"shall mean,with respect to a party, any Entity at any time Controlling, Controlled by or under common Control with, such party. B. "Agreement*shall mean this agreement and all schedules and exhibits attached hereto,which are expressly incorporated,any future amendments thereto,and any future schedules and exhibits added hereto by mutual agreement. C. 'Business Days'shall be Mondays through Fridays except holidays recognized by the Federal Reserve Bank of Chicago. D. 'Change in Control"shall mean any event or series of events by which(i)any person or entity or group of persons or entities shall acquire Control of another person or entity or(i) in the case of a corporation, during any period of 12 consecutive months commencing before or after the date hereof,individuals who at the beginning of such 12-month period were directors of such corporation shall cease for any reason to constitute a majority of the board of directors of such corporation. E. "Commencement Date'shall mean the date on which Metavante first provides the Initial Services to Customer. F. "Confidential Information"shall have the meaning set forth in Section 13.3 above. G. "Consumer'shall mean an Individual who obtains a financial product or service from Customer to be used primarily for personal, family,or household purposes and who has a continuing relationship with Customer. H. 'Contract Year" shall mean successive periods of twelve months, the first of which (being slightly longer than twelve (12) months)shall commence on the Commencement Date and terminate on the last day of the month in which the first anniversary of the Commencement Date occurs. I. 'Control'shall mean the direct or indirect ownership of over 50%of the capital stock (or other ownership interest, if not a corporation)of any Entity or the possession,directly or indirectly,of the power to direct the management and policies of such Entity by ownership of voting securities, by contract or otherwise. "Controlling'shall mean having Control of any Entity and"Controlled'shall mean being the subject of Control by another Entity. J. 'Credit Card Services"shall mean Services In support of Customer's credit card processing or merchant transaction processing business. K. 'Customer Data' means any and all data and information of any kind or nature submitted to Metavante by Customer, or received by Metavante on behalf of Customer,necessary for Metavante to provide the Services. L. °Damages'shall mean actual and verifiable monetary obligations incurred, or costs paid (except overhead costs, attorneys' fees,and court costs)which(a)would not have been incurred or paid but for a party's action or failure to act in breach of this Agreement, ©2010 Fidelity National Information Services,Inc.and its subsidiaries. 100453Everett City of Payment Services Master Agreement(BSP B2C Services)-0404111C 10 31